Beyond the Doctrine: Five Questions that Will Determine the ACA’s Constitutional Fate

The litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (“ACA” or “Act”) raises a number of interesting and important questions of constitutional law. But in cases of this magnitude and political salience, the Supreme Court’s deliberations typically are shaped by forces that transcend the relevant doctrine. The Court’s response to the ACA is unlikely to be an exception. Specifically, the Justices’ reactions to five questions—all of which go beyond the doctrinal merits—will likely determine the Act’s fate: (1) whether this is the sort of case in which judicial review is necessary, or instead one that the elected branches are capable of solving on their own; (2) whether the states are “separately incompetent” to reform the nation’s health care financing system, such that invalidating the Act will leave a policy void (and whether the existence of such a void should matter); (3) whether Congress’s power to adopt a more radical, single-payer-type system for all Americans should inform whether Congress has the authority to adopt the more incremental ACA; (4) whether the Court can invalidate the ACA, especially with an ideologically predictable 5-4 split, without appearing overly partisan to the American public; and (5) how Chief Justice Roberts will perceive the impact of this case on his legacy—as an opportunity to reaffirm the singular importance of judicial restraint, or as an instance where the Court’s intervention is necessary to preserve foundational principles. Each of these considerations extends beyond the precise constitutional questions presented. But in a case such as this, it is the Justices’ reactions to these broader questions that tend to drive their doctrinal analysis, rather than the other way around.

* Professor, Santa Clara University School of Law. J.D., 1994, Stanford University; B.A., 1990, Stanford University. I am grateful to the University of Richmond School of Law, and particularly Professor Kevin Walsh, for the opportunity to participate in the 2011 Allen Chair Health Care Symposium, and to David Ball, Deep Gulasekaram, David Hasen, Timothy Jost, Michelle Oberman, Ilya Shapiro, David Sloss, and Ilya Somin for their very helpful comments on earlier drafts. I owe thanks to Brandon Douglass and Jennifer McAllister for their terrific research assistance.